Brooklyn Law Review Volume 79 Issue 2 SYMPOSIUM: Article 11 Restatement Of... 2014 Why There Should Be No Restatement of Environmental Law Dan Tarlock Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Dan Tarlock, Why There Should Be No Restatement of Environmental Law, 79 Brook. L. Rev. (2014). Available at: https://brooklynworks.brooklaw.edu/blr/vol79/iss2/11 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Why There Should Be No Restatement of Environmental Law Dan Tarlock† INTRODUCTION There is no Restatement (First, Second, Third, or Fourth) of Environmental Law. Until 2012, the American Law Institute (ALI) had never considered preparing one or even considered an alternative such as a model act or white paper.1 Should the ALI consider the preparation of a Restatement of Environmental Law? The easy answer is why not? Environmental degradation continues throughout the world and in the United States. The law-driven project of rolling back pollution (including greenhouse gases), reducing the risks of exposure to toxic substances that threaten the health of humans and ecosystems, and conserving biodiversity remains an important work in progress. Environmental law is a relatively new but already well-established and important practice area and academic specialty. Since the first modern environmental law case was decided in 1965,2 there have been several thousand environmental † A.B. 1962, LL.B. 1965, Stanford University. Distinguished Professor of Law, Chicago-Kent College of Law and elected member American Law Institute. This paper was originally presented at the Brooklyn Law School Symposium, Restatement of . , organized by Professor Anita Bernstein. The paper benefitted greatly from the opportunity to hear a wide range of perspectives on the ALI and the Restatement process. 1 In 2012, a group of environmental scholars asked the ALI to consider two non-statement projects, a “Project or Report to summarize key principles of underlying environmental impact analysis,” and a similar undertaking on environmental enforcement. Memorandum from Dean Irma Russell et al. to the Honorable Lee Rosenthal and Professor Lance Liebman, Proposal for Project on Environmental Law (Oct. 3, 2012) (on file with author). The proposal illustrates the extent to which the ALI is using other means short of a full Restatement to reflect important new legal developments. Nothing in this article addresses the merits of ALI projects short of a full Restatement of environmental law. 2 Modern environmental law began with the Second Circuit’s opinion in Scenic Hudson Pres. Conf. v. Fed. Power Comm’n, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966). For the first time, a court reversed an administrative decision, a Federal Power Commission license, because the agency had not fulfilled its “affirmative burden” to consider the environmental impacts of the project and alternative sources of energy. Id. at 620. 663 664 BROOKLYN LAW REVIEW [Vol. 79:2 law judicial opinions.3 The subject is also supported by a strong academic community—even at Harvard4—that has strong ideas about its direction.5 This article examines several possible explanations for the ALI’s historic lack of interest in a Restatement of Environmental Law and whether the Institute should consider the preparation of a Restatement of Environmental Law. It concludes that there are no insurmountable barriers to the preparation of a Restatement, but that the ALI should not do so because environmental law needs to be reimagined, not restated. The argument proceeds in two parts. Part I examines a set of objections based on the subject’s newness, non-common law basis, positive nature, and the politically charged and contested, sorry state of contemporary environmental law.6 In brief, environmental law is neither a common law subject nor does it have a set of core substitute principles. However, the lack of traditional subject matter poses no insurmountable barriers to the preparation of a Restatement. Nonetheless, Part II argues that the ALI should not attempt a Restatement of Environmental Law because the subject is too far from the Institute’s core mission of restating, cleaning up, and modestly reforming the common or quasi-common law.7 3 The Environmental Law Institute began publishing the Environmental Law Reporter in 1970 after the seminal 1969 Arlie House conference, which helped define the emerging field and identified the need for a special compilation of the rapid cascade of cases triggered by the passage of the National Environmental Policy Act of 1969. Phillip H. Hoff & Rep. Paul N. McCloskey, Jr., Conclusion, in LAW AND THE ENVIRONMENT 368 (Malcolm F. Baldwin & James K. Page, Jr. eds., 1970). BNA also began publishing the Environmental Reporter Cases the same year. 4 In 2005, Harvard appointed Professor Jody Freeman, currently the Archibald Cox Professor of Law, which was the school’s first appointment of a major environmental law scholar. The appointment of the distinguished scholar Richard Lazarus as the Howard and Katherine Aibel Professor of Law followed in 2010. 5 Clark Boardman, now West Publishing, began publishing the Land Use & Environment Law Review in 1970. The Review is now in its 44th year. A two-level peer-review process selects the 10 or 11 best articles in the fields of land use and environmental law for publication in the Review. A. Dan Tarlock & David L. Callies, Preface, in LAND USE & ENVIRON. L. REV. at v (2012–2013). 6 The foundation of environmental law rests on four major statutes: The National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (2011); The Clean Air Act of 1970, 42 U.S.C. § 7401 et seq. (2011); the Clean Water Act of 1972, 33 U.S.C. § 1251 et seq. (2011); and the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (2011). All were enacted between 1969 and 1973. 7 This statement skips over the debate, which began with ALI’s founding, over the function of a Restatement. Should Restatements be only quasi-codifications of existing law, or should they try to reform the law by bringing it in line with current social conditions? See Kristen David Adams, Blaming the Mirror: The Restatements and the Common Law, 40 IND. L. REV. 205, 213-20 (2007) (summarizing the debate). I skip over this debate because it is irrelevant to my argument that the ALI’s focus on 2014] RESTATEMENT OF ENVIRONMENTAL LAW 665 There is considerable debate whether environmental law lends itself to substantive principles.8 All students of the subject matter agree that, at present, the subject is a paradox. In one respect, environmental law is inherently dynamic because it must constantly adapt to new insights from the physical and social sciences. In another respect, for political reasons it remains frozen in time or is being rolled-back. Because the ALI process is primarily backward-looking, there is a risk that a Restatement would freeze the law in its current dysfunctional and anti-environmental protection mode. Consequently, a Restatement now would impede the greater goal of effectively incorporating new interdisciplinary insights to address the continuing challenges of environmental degradation and global climate change.9 I. ENVIRONMENTAL LAW: NEW AND POSITIVE A. The Romans Didn’t Recognize the Subject Law schools and the ALI are still controlled by the legal silos of Roman law. Despite efforts to “enrich” the first-year law school curriculum or make it more street smart, the core curriculum still follows the Roman law categories of private and public law. With perhaps a single exception, the ALI during its first Restatement Era (1923–1944) logically concentrated on restating the private law subjects of the first-year curriculum and the related upper-division courses that followed. The core public law subject, criminal law, was ultimately addressed through the Model Penal Code rather than through a Restatement.10 The subjects of the first Restatements were agency, conflict of laws, contracts, judgments, property, restitution, security, torts, and trusts. During my law school years (1962–1965), agency, contracts, property, unjust enrichment and restitution, and torts were required first year courses. Judgments was taught as an element of civil procedure and trusts was a required second-year course. The trend of concentrating on the first-year common law curriculum continued in the second Restatement Era (1944– 1987), a period when the ALI mainly updated the Restatements the common law, in an inherently backward-looking exercise, makes it incapable of contributing to a dynamic area. 8 See infra notes 54-60. 9 Judge Richard Posner has criticized the ALI for not being sufficiently interdisciplinary and forward-looking. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 304-07 (1999). 10 See generally MODEL PENAL CODE (1985). 666 BROOKLYN LAW REVIEW [Vol. 79:2 that it had prepared in the first round.11 However, during this time, the ALI also began to break free from the common–Roman law heritage and prepared the Restatement of Foreign Relations. Today, the ALI is increasingly less wedded to the common– Roman law heritage, but it continues its focus on judge-made, rather than positive, law. In the third Restatement Era (1987 to the present), the ALI has continued to restate Roman-law derived subjects such as suretyship and guaranty. But, the great project of restating the core of the common law is over. The ALI has progressively narrowed its focus to specific aspects of a previously restated law and only incrementally addresses emerging areas of law.12 Using torts as an example, the ALI has tried to shape specific, dynamic areas that have more limited common or Roman law roots, such as products liability, apportionment of liability, physical and emotional harm, and unfair competition.